Don’t Use Wills Found on the Internet

Don’t Use Wills Found on the Internet

The Issue
In a case out of the Fort Worth Court of Appeals, the issue was what power did the trustee have to distribute or not distribute assets of the trust.
The beneficiaries of the trust sued the trustee to require him to distribute the assets to them. The trustee, a bank, wanted to keep operating the trust and refused to distribute assets. The issue before the court was whether or not the trustee had the right to not distribute assets and keep the trust active which was lucrative to the bank.
The Ruling
The Court of Appeals ruled that the trustee did not have to distribute the asset. In addition, the court ruled that the trustee was entitled to its attorney’s fees.
Reason for Ruling
The court made an exhaustive review of the will and trust documents creating the trust and determined that the trustee had “sole discretion” to make distributions and the beneficiaries could not force the trustee to make distributions.
What you should know
You need to know that words have meaning. Using words from a document that you find somewhere can lead to problems that you did not want. When you want to make a will, you should contact a competent attorney to help you. We do not prepare wills. 02-20-00058-CV.

The court also discussed the use of precatory words in a will or trust.

Can a testator make hand written changes to a will

Can a testator make hand written changes to a will

Can A Testator Make Hand Written Changes To A Will?

 

As a general rule, if a will is not “wholly” in the handwriting of the testator, it must be attested to by two credible witnesses.

If a testator attempts to make handwritten changes to a written will, those changes must be witnessed by two credible witnesses unless the handwritten parts are separate from the written will, in which case it would be a codicil to the original written will not handwritten changes on the original will.

If a testator wants to make handwritten changes to the written will the changes must be attested to by two credible witnesses. So you might have a situation where there is a will that is attested to by two credible witnesses and then handwritten changes on the written will that are attested to by the same witnesses on the original will or by new witnesses just to the handwriting changes. In the last situation, you would have four witnesses in total! 05-12-01420-CV.

WHAT CONSTITUTES A SIGNATURE ON A WILL

WHAT CONSTITUTES A SIGNATURE ON A WILL

What constitutes a signature

A holographic will is one that is wholly in the handwriting of the testator and signed by him. What constitutes a signature is often contested.

Texas recognizes holographic wills but other states do not. The difference between a holographic will and a typed or printed will is that the typed or printed will has to be attested to by two credible witnesses. Holographic wills do not need to be attested.

Any will whether holographic or regular has to be signed by the testator. When documents are offered for probate as holographic wills, one of the problems that comes about is whether it was signed or not.

In a 2020 case in Texas, a document that was handwritten by the decedent was offered for probate as his holographic will. There was no signature on the document, however, in the body of the document the testator did write “R. Hohmann Estate.” 04-20-00237-CV.

The proponent of the document as a holographic will claimed that that was a sufficient signature. Those contesting the document claimed that it was not and since the testator did not sign or initial the document anywhere, it did not meet the requirements of the holographic will. The court ruled that “R. Hohmann Estate” was not a proper signature.

“Because nothing in the written instrument indicates the phrase “R. Hohmann Estate” expresses Raymond’s approval of that document as a whole…” 

So, what is a valid signature on a holographic will? An X on a document by a person who could not read or write the English language was a sufficient signature. Likewise, a will that started out “I, JP Dawson, being of sound mind… Make this my last will and testament” satisfy the requirements of the signature.

I have written previously about riding on the back of a greeting card that was just initialed that was found to be a valid holographic will. You can read about that case here.

Every case is different and whether a document is a will depends on whether it disposes of property on death and is signed by the person whose will it is claimed to be.

Precatory words in a Texas will

Precatory words in a Texas will

Precatory words in a Texas will

What are precatory words?

Precatory words are words that are a request or a desire. If a will has precatory words, does that pass title?

Examples of precatory words

Occasionally, when someone writes a will, they will use words like “I wish that Bob gets my house” or “it is my desire that Bob gets my house.”

One will had the following language “The…stock belonging to me has been handed to Myrtle and Lyter for what I lost them in the oil deal.”

In general, none of this language in wills will pass any property. Precatory words in a Texas will just express a wish of the testator and don’t necessarily pass property. If the property is not otherwise mentioned in the will, the testator dies intestate (without a will) as to that property.

Whether language is precatory-i.e., language that requests, recommends, or expresses a desire rather than a command- or testamentary is a question of intent. 545 S.W.3d 542. Words that are precatory in their ordinary meaning will be construed as mandatory when it is evident that such was the grantor’s intent. 436 S.W.2d 234. In that case, the court considered a will and codicil and noted that when words like “desire” are used “in direct reference to the disposition of the testator’s own property and show a clear intent to make such disposition without the intervention of any act by the . . . donee, they are ordinarily regarded as imperative and testamentary rather than precatory.” Id. But precatory language is treated differently depending on whether it is directed to a beneficiary or an executor. Id. at 239-40. A wish directed to a beneficiary is generally regarded as precatory without a clear expression of intent to the contrary, while such words addressed to an executor “are more often regarded as mandatory.” Id. at 240. Using will forms found on the internet is not a good idea.

So, be precise. Don’t use niceties. Tell people how you are disposing of your property. “I give my house to Bob.” “I give my stock to Myrtle.”

Is A Will Voidable Because of Public Policy

[cherry_row type=”full-width”]

[cherry_col size_md=”12″ size_xs=”none” size_sm=”none” size_lg=”none” offset_xs=”none” offset_sm=”none” offset_md=”none” offset_lg=”none” pull_xs=”none” pull_sm=”none” pull_md=”none” pull_lg=”none” push_xs=”none” push_sm=”none” push_md=”none” push_lg=”none” collapse=”no”]

[mp_image id=”2588″ size=”full” link_type=”custom_url” link=”#” target=”false” caption=”false” align=”left”]

[/cherry_col]

[/cherry_row]

[cherry_row]

[cherry_col size_md=”12″]

Backbround

In 2016, the Texas court of appeals in Austin had to decide if a will was voidable because of public policy. The testator had one child, a girl. Two days before he died, he executed a new will that disinherited his daughter. The daughter contested the will. Her principal theory was that her disinheritance by her father violated ” public policy” –namely Texas’s strong public policy against sexual abuse of children. As her basis for that theory, she alleged that her father had abused her sexually while she was a (more…)

Can You Probate An Invalid Will In Texas

Can You Probate An Invalid Will In Texas

Invalid wills can be admitted to probate if not contested

The idea to take away from the case discussed in this article and similar cases is that this will had been admitted to probate. If the family had not contested it, the “friend” would have taken all the estate. Even invalid wills sometimes get admitted to probate as this one did. So to the question of “Can you probate an invalid will in Texas?” The answer is yes if the proper beneficiaries don’t take action quickly to contest the will.

Recent Case

In The Estate of Romo (not that Romo), the El Paso Court of Appeals ruled on a will contest case. The will had been filed by the testator’s “friend” and the judge admitted it to probate. It left the testator’s estate to the friend. Several months after the will had been admitted to probate, a will contest was filed by the testator’s family. The family offered a prior will that left all to the family. The will contest was filed because, allegedly, the testator did not have the mental capacity to make the new will and he was (more…)

Pin It on Pinterest